Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Ratified international treaties

High court TEOH decision (pdf)

See also Vienna Convention on the law of treaties 1969/, and Infosheet 23 (APH)

TEOH AI summary:

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 is a leading Australian High Court decision showing that ratified international treaties can create a legitimate expectation about how public power will be exercised, even when those treaties have not been fully incorporated into domestic legislation.

Brief factual background

Teoh was a Malaysian citizen living in Australia with his Australian wife and their children, plus his wife’s children from earlier relationships. While his application for permanent residence was pending, he was convicted of serious drug offences, and a delegate of the Minister refused his application and ordered his deportation. The impact on his wife and children, including their right to remain with their father in Australia, was raised but was not treated as the primary consideration.

How the Court used the Convention

Australia had ratified the UN Convention on the Rights of the Child (CROC), which states that in all actions concerning children, their best interests must be “a primary consideration.” The Convention had not been fully enacted into Australian statute, but the majority of the High Court treated ratification as a clear public commitment that administrative authorities would act consistently with it, absent contrary indication. From that public commitment, the Court said people affected by administrative decisions involving children could reasonably expect decision‑makers to treat the child’s best interests as a primary consideration and to proceed on that basis unless they were warned otherwise and given a chance to respond.

Legitimate expectation and ordinary people

The majority (Mason CJ, Deane, Toohey and Gaudron JJ) held that ratification of such a human‑rights‑centred treaty is not a “mere platitude” but a positive statement to both the international community and the Australian people. That statement was enough to found a legitimate expectation that administrative decision‑makers would conform to the treaty’s standards when exercising discretionary powers, at least in the absence of legislation or policy clearly to the contrary. In practical terms, this means every person affected by an administrative decision in a field covered by a ratified treaty (for example, decisions affecting children under CROC) can legitimately expect that the decision will be made, and procedures followed, in a way that reflects the treaty’s key commitments.

Procedural fairness consequence

In Teoh, the Court found that this legitimate expectation had been breached. The decision‑maker did not treat the children’s best interests as a primary consideration and did not tell Teoh that the application would be decided on a basis inconsistent with the expectations raised by the Convention. Because he was not given a fair chance to address that, there was a denial of procedural fairness. The decision refusing him resident status was therefore set aside and the matter had to be reconsidered according to law, with his deportation stayed in the meantime.

How to deploy Teoh in argument

You can use Teoh to argue that:

• When Australia ratifies an international treaty dealing with basic human rights, it makes a public and solemn commitment to act consistently with that treaty in administrative decision‑making.

• Ordinary men and women affected by such decisions have a legitimate expectation that decision‑makers will apply the treaty’s central standards unless government has clearly said otherwise.

• If an official proposes to act inconsistently with that expectation, procedural fairness generally requires that the person be told and given an opportunity to respond.

For example, in a submission you might say that, just as in Teoh, a ratified human rights treaty to which Australia is a signatory creates a legitimate expectation in every affected person that administrative powers will be exercised compatibly with the treaty’s core obligations, or that they will at least be heard before the State departs from that standard.